N9666

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1333, 1334, 1335, 1336, 1337, 1338 & 1382 OF 2019

THE STATE

V

JEFFERY KAVANAMUR, HEROLD HALEGOE, LINUS HOLI, TUKAN GIMIS, SUSAN TERRENCE HALEGOE, FRANCIS RAPHAEL KIVAVAI & SOLO MAGUM LAHIS

Buka, Autonomous Region of Bougainville: Wurr, AJ
2022: 7th, 8th, 9th June

CRIMINAL LAW- Trial- Manslaughter- One pleaded guilty while rest pleaded not guilty- Section 552 (2) application on foot- Indictment presented but State Witnesses not available to give evidence- Application by State for adjournment refused- No case upheld- Accused persons acquitted and discharged- Bail refunded.

CRIMINAL LAW - Plea - Sentence - Manslaughter – Death caused by drowning – No weapons used – In the company of others- Accused elderly man- guilty plea treated as an extenuating mitigating factor as State witnesses not present but chose to plead guilty - Prevalence of offence - Partly suspended sentence appropriate - Term of 7 years imprisonment imposed and partly suspended - Criminal Code, Ch 262 - Sections 19 & 302.

Cases Cited:

Manu Kovi -v- The State (2005) SC789 
Saperus Yalibakut v The State (2006) SC890
The State v Kondonga (2012) PGNC 24; N4619
The State v Morgan (2001) PGNC; N2171
The State v Paul Kundi Rape [1976] PNGLR 96

Counsel:

T.Aihi, for the State
C.Koek, for the Offender

JUDGMENT

9th June, 2022

1.	WURR, AJ: This decision is in two parts- the first is my decision on verdict for the accused Jeffery Kavanamur, Herold Halegoe, Tukan Gimis, Susan Terrence Halegoe, Francis Raphael Kivavai and Solo Magum Lahis. The second part deals with the sentence of Linus Holi as he pleaded guilty.

VERDICT

2.	This matter commenced as a joint trial on 7 June 2022 when the State presented an indictment charging all accused persons under Section 302 of the Criminal Code, Ch 262, also invoking Section 7 (1)(a)(c) of the Code.

3.	The State alleged that on the evening of 1 March 2019 between 7pm and 8pm all accused persons were on Sohano Island. At that time the deceased namely Sebastian Siperau and others accompanied a person by the name of Francis to meet with one of the accused namely Herold Halego regarding a debt which Herold owed to Francis. The meeting did not go as planned because Herold could not repay his debt. He also refused Francis’ request to give security for the debt. This led to an argument between Francis and his group on one part against Herold. The accused Susan Terence Halegoe, wife of Herold, called out saying “yupla kam, ol Buin ol laik stilim ol boat”. Upon hearing this, the accused Jeffery Kavanamur, Tukan Gimis, Linus Holi, Francis Raphael Kivavai and Solo Magum Lahis ran to the scene and chased the deceased and his group away from the village. They threw stones at them as they were trying to get away. The deceased unfortunately was left behind by his group because he could not swim. He tried to save himself by holding onto the edges of the reef when the accused Herold used a piece of timber to hit the deceased on his body. Accused Linus and Tukan overpowered the deceased by pulling him by his shirt into the water when he tried to gasp for air. The accused Solo, Jeffery and Raphael took turns to punch the deceased several times on his chest and abdominal area after he was pulled out of the water. He was carried back to the village and taken to hospital but died soon thereafter from drowning.  

4.	Upon arraignment, all except the accused Linus Holi, pleaded not guilty to the charge. The State and defence agreed to tender the following documents into evidence:

1.	Statement of Senior Sergeant Joseph Numbos dated 17 April 2019 attaching 10 photographs of the crime scene on Sohano Island – Marked as Exhibit P1.
2.	Statement of Detective Sergeant Sheena Cook undated, attaching 2 photographs of the deceased – Marked as Exhibit P2
3.	Affidavit of Dr Tommy Wotsia sworn on 22 May 2019 attaching the Post-Mortem (Autopsy) Report dated 18 March 2019 – Marked as Exhibit P3 and P3 (A) respectively.
4.	Medical Certificate of Death dated 18 March 2019 – Marked Exhibit P4

5.	The State then proceeded to call its witnesses however they did not appear. Ms Aihi sought a short adjournment to the afternoon to buy time for the State witnesses to make an appearance. Ms Koek for the defence objected to the application. Upon hearing counsels, I refused the State’s application for adjournment because of the following reasons- first is that the Court had already wasted a week in Buka waiting for a State Prosecutor to arrive from outside to assist the Court. Furthermore, it is a 2019 matter that has been prioritized for this circuit and a Section 552 (2) application was on foot. During Call over Ms Aihi confidently set the matter down for trial to commence the very next day. She did not indicate that she had any difficulties in contacting any of the State witnesses.  For all those reasons, I refused the application for adjournment and the State closed its case. 

6.	Based on the evidence contained in the exhibits tendered into Court by consent, the defence made a no case submission. Ms Aihi conceded to the application admitting that they had no evidence to sustain the charge laid against the accused persons. 

7.	The no case is premised on both legs of the Paul Kundi Rape (1976) PNGLR 96, case principles, ie; (i) where there is no iota of evidence on one or more elements of the charge of manslaughter, the accused must not be called to answer the charge and (ii) where there is some evidence on all the elements of the charge but that evidence is so insufficient and hopeless and the evidence has been so discredited in cross-examination that it is now so unreliable or that the evidence as it stands is so unbelievable or so incredible such that no reasonable tribunal could convict on that evidence. 

8.	The State’s evidence met both legs of the no case principles hence I upheld the no case submission and acquitted and discharged six of the seven accused persons namely Jeffery Kavanamur, Herold Halegoe, Tukan Gimis, Susan Terence Halegoe, Francis Raphael Kinavai and Solomon Magum Lahis. I also made an order for their bail to be refunded. 

9.	Following on from there, the State tendered the Committal Court depositions for Linus Holi and alleged no prior convictions. Upon perusal of the file, I was satisfied that the evidence was sufficient to sustain the charge of manslaughter and accordingly confirmed his guilty plea.  This is now his Sentence.  

SENTENCE (LINUS HOLI)

10.	The offender Linus Holi is now 53 years of age and married with four children and three grand- children. His wife is a homemaker, and the offender was once employed with the Health Department as a skipper for twenty years, later promoted to the position of filing clerk in 2015 where he worked until his termination when arrested and charged for this offence.  He was educated up to Grade 6 and is a member of the United Church. 

11.	The facts giving rise to the charge against him are as set out in paragraph 2 of my judgment herein as they are the facts he pleaded to in his arraignment when all his co-accused denied them. Briefly the offender confessed to drowning the deceased, which caused his death. 

12.	The offender has no prior convictions according to the antecedent report.

13.	When the offender was given the opportunity to say what matters the court should take into account when deciding on punishment, he said:

a.	“Yes it is true and I want to apologize for what I have done. I say sorry to Your Honour and the Good Lord for what I did. Before you sentence me, please reduce the sentence Your Honour”

14.	As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (see Saperus Yalibakut v The State (2006) SC890). In that regard, I will take into account that the offender and his relatives paid K10, 000.00 compensation to the deceased family and relatives per Ms Koek’s submission. I take into account the fact that the relatives of the deceased retaliated and burnt down several properties which belonged to certain members from the offender’s community at Sohano Island. The value of the destruction is not known; it is also not known whether the offender personally suffered any losses due to the destruction.

SUBMISSIONS BY THE STATE

15.	 In accordance  with Order 11 Rule 7 of the recent Criminal Practice Rules of 2022, the State commenced submissions by submitting that this case fell into the first category of manslaughter cases according to the  sentencing tariff set out in the Supreme Court case of Manu Kovi v The State (2005) SC789, hence warranted a sentence between 8-12 years. The Court under Section 19 of the Criminal Code Act had the discretion to suspend any part of the sentence taking into account the mitigating and aggravating factors present in the case. 

SUBMISSIONS BY THE DEFENCE

16.	Ms Koek conceded with the State that this case fell into the first category of manslaughter cases as per the sentencing tariff outlined in the case of Manu Kovi however argued that given the two extenuating or special mitigating factors  present in this case, particularly the guilty plea of the offender and his elderly age, she submitted for a term of 6 years to be imposed, 6 months spent  in pre-sentence custody to be deducted and the balance to be wholly suspended with conditions. 

DECISION MAKING PROCESS

17.	To determine the appropriate penalty, I will adopt the process that is commonly used by His Honour Justice Cannings to arrive at an appropriate decision on sentence; and this process is set out as steps in the following manner:

step 1: what is the maximum penalty?
step 2: what is a proper starting point?
step 3: what sentences have been imposed for equivalent offences?
step 4: what is the head sentence?
step 5: should the pre-sentence period in custody be deducted?
step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

18.	 Under Section 302 (manslaughter) of the Criminal Code the maximum penalty is life imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

19.	 In accordance with the sentencing tariff set out in the case of Manu Kovi v The State (2005) SC789 , and consistent with both counsels submissions, I agree that this case falls into the first category of manslaughter cases which calls for a term between 8-12 years imprisonment. That will be the starting point for this case.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

20.	I have considered only two cases which were relied on by the State and Defence respectively, to use as a guide to assist me in arriving at an appropriate decision on sentence for this offender.

(1)	The State v Morgan (2001) PGNC; N2171;

In that case the offender pleaded guilty to Man slaughter. He threw two serious blows to the deceased resulting in rapture of spleen and lung. The offender has a habit of getting drunk and disturbing the peace, and the deceased who was sleeping at the time was disturbed so came out to confront the offender. This resulted in a fight and later in his death. He has no prior convictions and was sentenced to 12 years by His Honour Justice Kandakasi (as he then was).

(2)	The State v Kondonga (2012) PGNC 24; N4619

The offender was a young man of 20 years. At the time of the offence, he was 19. He pleaded guilty to unlawfuly killing a young boy under section 302 of the Criminal Code, Ch 262. He accidentally killed the deceased when he threw a stone to scare the deceased and two others to go to their houses. The stone struck the deceased on his chest and he was in great pain. He was rushed to Kudjip Nazarene Hospital and following surgery, died. According to the medical report, he died from a blunt trauma caused by the impact of the stone on his chest. Justice Makail in that case sentenced the offender to 6 years, imprisonment, 10 months spent in custody deducted, and 3 years and 2 months suspended on the condition that he enter into his own recognizance and be of good behaviour for that period when he comes out of prison. He was ordered to serve the remainder of 2 years in prison in hard labour.

21.	The other case referred to me by defence counsel is The State v Mema (2012) PGNC N4602. In that case the offence was committed in a domestic setting. The element of de facto provocation was quite strong which led to the Court’s decision in suspending 5 of the 6 year term. That was a case presided over by His Honour Late Justice Kirriwom in Wewak. In that case the deceased was the offender’s cousin brother. He was very abusive towards the offender, her sister and her mother. He had in the past assaulted all of them so they were very much aware of his behavior and ill feeling towards them. At the relevant time the deceased attacked the offender’s mother and left. While the offender and her sister were attending to their bleeding mother, the deceased came back and attacked the offender. She was provoked and also trying to protect herself, she took a piece of wood and hit his head while she was on the ground. Some community members came to their aid and further attacked the deceased. He died later from the trauma to his head caused by the offender, according to the Medical Report. She was sentenced to 6 years but 5 years was suspended. The facts of that case, in my view are far from close to this case hence I have not considered the sentencing in that case.

STEP 4: WHAT IS THE HEAD SENTENCE?

22.	 To determine the head sentence, I will take into account the mitigating and aggravating factors present in this case, as well as the peculiar circumstances of this case. The following mitigating factors operate in favor of the offender: 

•	no weapon was used;
•	pleaded guilty;
•	expressed genuine remorse;
•	first-time offender;
•	customary reconciliation

23.	The aggravating factors present in this case are:

•	in the company of others
•	prevalent offence

24.	When considering these factors, I am convinced that the mitigating factors outweigh the aggravating factors. In fact I place much weight on the offender’s guilty plea and his expression of remorse because if he was not truly sorry for what he did, or what happened to the deceased, he would have opted to plead not guilty with the rest of the accused, and now be a free man. Instead he chose to confess to the charge, and the Court should give due weight to his plea. I also take into account his elderly age as a special mitigating factor.  After comparing this case with the other manslaughter cases, I impose a head sentence of 7 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

25.	 Under Section 3(2) of the Criminal Justice (Sentences) Act, the pre-sentence period in custody will be deducted from the head sentence.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

26.	Yes, I find that this is an appropriate case in which to suspend part of the sentence, in light of the overwhelming mitigating factors operating in favor of the offender. I will suspend 3 years and 6 months with conditions.

SENTENCE

27.	Using 8 - 12 years as a guide, I accept the offence is prevalent. It is also true and I accept that a precious life has been lost as a result of the offender's unlawful act and no amount of compensation can recover the life lost. Other than these, I find the mitigating factors far outweigh the aggravating factors because first, the offender pleaded guilty to the offence; secondly he is a first offender; thirdly, he expressed remorse for what he did; fourthly, substantial customary compensation comprising of K10,000.00 has been paid to the relatives of the deceased; and finally I take into account the offender’s elderly age. 

28.	Although Ms Koek submitted that this court should wholly suspend the sentence, I am not persuaded to do so, as a life has been lost and it is a prevalent offence. A deterrent sentence is called for. In all the circumstances of the case, I consider a partly suspended sentence is appropriate. It is therefore the judgment of this Court that the offender is sentenced to a term of 7 years imprisonment. 6 months is deducted for time spent in pre-sentence custody which leaves a balance of 6 years and 6 months. I further suspend 3 years and 6 months and order that he enter into his own recognizance and be of good behaviour for that period when he comes out of prison. He shall serve the remainder of 3 years in prison in light labour. Bail of K500 is to be refunded back to the prisoner forthwith.

Offender sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor Lawyers: Lawyers for the Offender